Secretary of State for Communities and Local Government v Hopkins Developments Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Beatson,Lord Justice Christopher Clarke |
| Judgment Date | 15 April 2014 |
| Neutral Citation | [2014] EWCA Civ 470 |
| Docket Number | Case No: C1/2013/2213 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2014 |
[2014] EWCA Civ 470
Lord Justice Jackson
Lord Justice Beatson
and
Lord Justice Christopher Clarke
Case No: C1/2013/2213
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
His Honour Judge Denyer QC
Royal Courts of Justice
Strand, London, WC2A 2LL
James Maurici QC (instructed by The Treasury Solicitor) for the Appellant
Jeremy Cahill QC and Satnam Choongh (instructed by Ashfords LLP) for the Respondent
Hearing date: 13 March 2014
This judgment is in seven parts, namely:
| Part 1. Introduction | (paragraphs 2 to 17) |
| Part 2. The facts | (paragraphs 18 to 35) |
| Part 3. The application to the High Court | (paragraphs 36 to 41) |
| Part 4. The appeal to the Court of Appeal | (paragraphs 42 to 44) |
| Part 5. The law | (paragraphs 45 to 62) |
| Part 6. The application of the legal principles to the present appeal | (paragraphs 63 to 75) |
| Part 7. Executive summary and conclusion | (paragraphs 76 to 78) |
This is an appeal by the Secretary of State against an order of the High Court under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") quashing an Inspector's decision for breach of the rules of natural justice or procedural fairness. The principal issue is whether the Inspector's decision should be quashed because she reached her decision by reference to matters which had been debated in evidence but which the Inspector had not identified as main issues. Counsel on both sides tell us that the resolution of this issue is a matter of importance, which affects the conduct of planning inquiries generally.
Hopkins Developments Ltd is the party seeking planning permission. It was applicant in the High Court proceedings and is respondent in the Court of Appeal. I shall refer to it as "Hopkins".
The Secretary of State for Communities and Local Government was first defendant in the High Court, and is appellant in the Court of Appeal. I shall refer to him as "the Secretary of State".
Somerset District Council is the local planning authority. It was second defendant in the High Court, but is not a party to the present appeal. I shall refer to it as "the District Council" or "the Council".
The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 set out the procedures to be followed in planning appeals. I shall refer to these Rules as "the 2000 Rules" or "the Rules". Where I refer to a particular rule, this is always a reference to the 2000 Rules.
Rule 7(1) of the 2000 Rules provides:
"(1) An Inspector may, within 10 weeks of the starting date, send to the appellant, the local planning authority and any statutory party a written statement of the matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal."
Rule 14 provides that parties appearing at an Inquiry under the 1990 Act shall furnish copies of their proofs of evidence to the Secretary of State four weeks before the date fixed for the hearing.
Rule 15 provides:
"(1) The local planning authority and the appellant shall–
(a) together prepare an agreed statement of common ground; and
(b) ensure that the Secretary of State and any statutory party receives a copy of it, within 5 weeks of the starting date.
(2) The local planning authority shall afford to any person, who so requests, a reasonable opportunity to inspect and, where practicable, take copies of the statement of common ground sent to the Secretary of State."
Rule 16 provides:
"(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry.
(2) At the start of the inquiry the Inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear.
(3) Nothing in paragraph (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph.
…
(12) The inspector may take into account any written representation or evidence or any other document received by him from any person before an inquiry opens or during the inquiry provided that he discloses it at the inquiry."
Rule 18(3) provides:
"(3) If, after the close of an inquiry, an inspector proposes to take into consideration any new evidence or any new matter of fact (not being a matter of government policy) which was not raised at the inquiry and which he considers to be material to his decision, he shall not come to a decision without first–
(a) notifying in writing the persons entitled to appear at the inquiry or who appeared at it of the matter in question; and
(b) affording them an opportunity of making written representations to him or of asking for the re-opening of the inquiry,
and they shall ensure that such written representations or request to re-open the inquiry are received by the Secretary of State within 3 weeks of the date of the notification."
I shall refer to a written statement sent by an Inspector under rule 7(1) as a "rule 7 statement". I shall refer to a statement made by an Inspector under rule 16(2) as a "rule 16 statement".
The Secretary of State issued Procedural Guidance (PINS 01/2009), which came into effect on 6 th April 2009. This includes the following provisions:
"6.6.1 A statement of common ground is essential to ensure that the evidence at an inquiry focuses on the material differences between the main parties. Effective use of such statements is expected to lead to more efficient inquiries. The statement should identify the areas of agreement and disagreement. Identification of these two matters will greatly assist the Inspector in preparing for the case, by clarifying the matters remaining in dispute. It will also provide a commonly understood basis for the parties to inform the evidence. This should lead to an improvement in the quality of the evidence and a reduction in the quantity of material which needs to be considered.
…
6.8.2 Proofs of evidence should not include matters which are not in dispute. They should focus on the issues of dispute remaining following the statement of common ground."
In most planning appeals, the principal protagonists are the disappointed applicant for planning permission and the local planning authority. I shall refer to these two parties as "the main parties". Nevertheless, many third parties participate in planning appeals. They are usually local residents and others with an interest in the area. Their evidence is, or may be, important.
Some of the documents in this case, whether generated by the parties or the Inspector, are undated. This has led to debate and some speculation at the hearing of the appeal as to the sequence of events. This is unfortunate. Even in the specialist field of planning inquiries, people really should put dates on the documents which they send out. The dates which I give in Part 2 of this judgment are the best which can be deduced from detective work combined with counsel's recollection.
I must also say a word about skeleton arguments. The rules governing skeleton arguments in the Court of Appeal are set out in Practice Direction 52A paragraph 5 and Practice Direction 52C paragraph 31. The skeleton arguments must be concise and, in any event, not exceed 25 pages. They must not include extensive quotations from documents or authorities. The way to highlight relevant passages in authorities is by sidelining, not by quoting long passages in the skeleton arguments.
The skeleton arguments in this case do not comply with the Practice Direction. Accordingly, whichever party wins will not recover the costs of preparing its skeleton argument.
After these introductory remarks, I must now turn to the facts.
On 14 July 2011, Hopkins applied for outline planning permission to construct 58 dwellings on a field at the edge of Wincanton. The site roughly forms a right-angled triangle, with its hypotenuse on the north side. Wincanton Community Hospital is on the south-west side. Cable Road is on the south-east side, with the back gardens of houses in Cable Road abutting the site boundary. The two main roads closest to the site are Verrington Lane and Dancing Lane. An access road leads from Dancing Lane to the hospital and indeed through the hospital grounds. Hopkins proposed that that same access road should also be used as access for the 58 new dwellings.
On 12 October 2011 Somerset District Council refused permission, stating six reasons which I would summarise as follows:
i) The proposed development was not needed in order to meet the Council's target for five year housing supply.
ii) The proposal made insufficient provision for public open space.
iii) The proposed dwellings were so close to the hospital and the Cable Road houses that they would result in "an overbearing impact, loss of outlook and loss of privacy to the detriment of the amenities of existing residents and users of the hospital".
iv) There was a danger of noise and odours from the proposed pumping station affecting residential amenity.
v) The proposed access route passing through the hospital grounds "would result in conflicting traffic movements to the detriment of highway safety and residential...
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